Lacey v. Hendricks

51 So. 157 | Ala. | 1910

EYANS, J.

It is settled law in this jurisdiction that no action can be supported against a justice of the peace, acting judicially, and who has not exceeded his jurisdiction, however erroneous his decision or malicious his motive. — Irion v. Lewis, 56 Ala. 190, 197; Heard v. Harris, 68 Ala. 43; Coleman v. Roberts, 113 Ala. 323, 331, 21 South. 449, 36 L. R. A. 84, 59 Am. St. Rep. 111; Crosthwait v. Pitts, 139 Ala. 421, 424, 36 South. 83. It cannot be determined, upon the averments of counts 5, 6, 7, 8, 9, and 10, that the justice was not acting judicially, and that the act complained of was not within his jurisdiction. Therefore, without further noticing other defects in them, the court holds that those counts are open to the demurrer filed to them.

The eleventh count of the complaint shows that plaintiff was tried and convicted of an assault and battery before defendant Lacey in August, 1907. It also shows that, notwithstanding an appeal was perfected on the day of the conviction by the plaintiff in this cause to the criminal court, yet on October 7, 1907, the justice (Lacey) sentenced plaintiff to hard labor for failure to pay the find, and issued a mittimus to the sheriff commanding him to take the plaintiff into his custody and hold him until discharged by law. Noav, after the appeal was perfected, the cause was removed from the justice’s jurisdiction absolutely, and he had no power or authority to take any further steps in that ease than to certify or send the papers to the criminal court. Moreover, even if no appeal had been taken, the justice was, on the 7th of October, without jurisdiction to sentence plaintiff to hard labor because he was in default of the payment of a fine assessed against him upon his conviction at a trial in the month of August. — Ex parte State, in re Newton, 94 Ala. 431, 10 South. 549. Therefore the issuance of the mittimus based upon that sentence was an act without the power or jurisdiction of the justice, and without support or authority of the law. Whilst count 11 may be, and doubtless is, subject to demurrer, yet the demurrer leveled at it is inapt.

If objection had been timely and properly made to the testimony of witness Powell, that Judge Greene remarked that “somebody was liable for false imprisonment,” such objection should, and doubtless would, have been sustained by the trial court. But the manner in which this matter is presented by the bill of exceptions prevents this court from reviewing it.

The court committed reversible error in allowing the question to witness Collins Johnson, “Did or not plaintiff give an appeal bond?” etc. Whether or not an appeal bond had been given was a contested issue, and while it was conceded that, if such bond was given, the original was lost, it was not competent for a witness to state as a conclusion, that an appeal bond was given. He might very properly have been allowed to state the contents of the paper, and then it would have been foe the court’s determination as to whether such contents as the witness testified to constituted an appeal bond.

For the errors pointed out, the judgment of the circuit court must be reversed, and the cause will be remanded.

Reversed and remanded.

Dowdell, C. J., and Anderson and Sayre, JJ'.,-concur. Thie foregoing opinion was prepared by Justice Den-son before his retirement as Associate Justice, and, having been adopted in consultation, is now announced as the opinion of the court.